Duggan v. Baltimore & Ohio Railroad

Opinion by

Mr. Justice Mitchell,

The instructions to the jury on the measure of damages cannot be sustained. The charge that plaintiff could recover “ only such damages as resulted from his being unable to complete his trip that day,” is substantially the same as the point presented in Penn. R. R. Co. v. Spicker, 105 Pa. 142, that “ damages must be limited to compensation for loss of time, expenses incurred then and there, and the cost of another ticket ” which this court held was properly refused.

The further charge that plaintiff’s recovery “ could only be by way of compensation, and if he sustained no loss in consequence of it, the damages would simply be nominal,” was likely to confuse the jury as to nominal and compensatory damages, and to mislead them to suppose the latter should only include definite pecuniary loss. Such is not the rule. Nominal damages are those recoverable where a legal right is to be vindicated from an invasion that has produced no actual present loss of any kind. If there has been any actual loss, then the damages must be compensatory, and for false imprisonment, as for trespass in improperly ejecting plaintiff from the cars, such damages include, in addition to actual expenses incurred, compensation for loss of time, interruption of business, bodily or mental suffering, humiliation and injury to feelings. If the plaintiff was entitled to have his case go to the jury at all, these matters were proper subjects for consideration in estimating his compensation; Perry v. Pittsburgh, etc. R. W. Co., 153 Pa. 236; 7 Am. & Eng. Encyc. of Law, 690.

The main question in the case, was the defendant responsible for the violation of plaintiff’s rights, may turn on either of two grounds. First, was Shephard the agent of defendant in ordering the arrest, and had he such authority, actual or apparent, as justified the conductor in obeying his telegraphed order ? It is not necessary, as the learned judge seems to have told the jury, that the defendant should have authorized Shephard to make an arrest without a warrant. If he had the general authority, actual or apparent, to act for the defendant in the capacity of detective officer, and such authority included, expressly or by general usage and consent, the power to make an arrest in their behalf, then the mode of execution of such power, with warrant or without, was immaterial, and the defendant was liable in either event. That is the general ground of the operation of the maxim respondeat superior. If the master orders the thing done, he is responsible for the manner in which the servant does it. There was some evidence of Shephard’s employment as detective for the defendant, and that question must go the jury.

Secondly, was the defendant made liable by the action of the conductor ? This also was a question for the jury. The conductor has general power and control over the train and all persons on it, with authority to compel observance of the regulations of the company, to preserve order, and to employ the whole force of the train men, and of passengers willing to assist, for these purposes. These extensive powers involve the correlative duty to protect passengers, not only from injury by negligence or accident, but also from violence and illegal annoyance or interference by other parties. In Pittsburgh etc. R. R. Co. v. Hinds, 53 Pa. 512, a woman passenger was injured during a fight among a mob of disorderly men that had got on the train at a way station. This court held that the railroad company escaped liability for allowing them to get on only because the evidence showed clearly that the conductor had no opportunity or force adequate to prevent them, and the railroad company was not bound to anticipate such an occurrence, but that it was liable if the conductor did not do all he could to stop the fighting. The law on this point as to the duty to protect passengers from violence and disorder, is laid down by Chief Justice Woodward with great stringency. The conductor, he says, “ has large powers at his disposal, and if properly used, they are generally sufficient to preserve order. . . . His official character and position are a power. Then he majr stop the train and call to his assistance the engineer, the fireman, all the brakesmen and such passengers as are willing to lend a helping hand. . . . Until at least he has put forth the forces at his disposal, no conductor has a right to abandon the scene of conflict.” Again in Pittsburgh etc. R. R. Co. v. Pillow, 76 Pa. 510, it is said that there is no sound distinction between injuries from negligence in the equipment or management of the train, and those arising from the misconduct of passengers upon it. “ If the employees of the road had no control or power over passengers, this argument would be sound. But they have such power, and they are just as responsible for its proper exercise, as they are for the proper running of the train.” This case was quoted approvingly in Rommel v. Schambacher, 120 Pa. 579, where upon the same principle an innkeeper was held liable for not protecting a guest from the drunken freak of another. And what is said in Lang v. Penn. R. R. Co., 154-Pa. 342, as to the protection of goods, applies a fortiori to the protection of the persons of passengers. “ The railroad company was, represented in the carriage and safe-keeping of the freight on the train by the men to whom the train had been committed. If they deserted their posts and left the goods uncared for, and they were stolen or destrojmd, their employer must suffer for their inefficiency.”

In the present case the telegraphed order of Shephard was addressed to the conductor, he appears to have accepted it as valid, and the subject was within the general line of his duty. If therefore he took part in the-illegal arrest the defendant was liable for the consequences of his act. But even beyond this, it was his duty under ordinary circumstances, as already said, to protect his passengers from trespass while under his care, and if he stood by and saw them illegally molested in any way without an effort to protect them, it would be negligence for which the defendant would be liable. He was not however required to enter into a contest with or put himself in opposition to the officers of the law, and if he merely stood by without taking part in the arrest by known policemen, he was not necessarily bound to inquire into their authority, or assert his own against it. How far the conductor in the present case assisted in the arrest is the subject of some conflict in the testimony, and what knowledge he had of the illegality of it, is not clear. Although the telegram was addressed to him, as the conductor of that train, he does not seem to have assumed the direction of the affair, but rather to have acquiesced in what the police whom he found there on his arrival should do, with the suggestion that they should not detain his train. The case must therefore go to the jury to determine what he did, and whether, in accordance with the principles of law, it was a proper performance of his duty.

The distinction made in the English cases cited by appellee, with reference to acts ultra vires as to the corporation, does not seem to have commanded general assent in this country, (see 7 Eng. & Am. Encycl. of Law, 684,) but we are not required to consider it'at present, as our own cases show that the alleged acts of the conductor as well as of Shephard were such as might be viewed by the jury as within the apparent authority delegated by the defendant.

The paper book of appellant is open to just complaint. In a rather full brief of cases from other states not a single Pennsylvania decision is referred to, although, as this opinion shows, there are several which are much closer in point than any of those cited, and thej>are of course much more authoritative with us than those of other states, however well reasoned. In the pressure of business on this court we ought not to> be called on to do counsel’s work. It is not always possible to recall at once even cases with which we are familiar, and we should be able to rely on counsel for reference at least to everything relevant and material in our own reports. Counsel who neglect this duty take a risk not fair either to the court or their client.

Judgment reversed and venire de novo awarded.

DUGGAN V. B. & O. RAILROAD, APPELLANT.

Appeal, No. 302, Oct. T. 1893, by defendant, from same judgment as in preceding case, and argued with it.

Opinion by

Mr. Justice Mitchell,

December 30,1893:

For the reasons set forth in the opinion in Duggan v. Balt, etc. R. R. Co. filed herewith this appeal is dismissed.